형법 제1조 제2항이 적용되는 경우에 대한 고찰

Through 「Supreme Court en banc Decision 2020Do16420 Decided December 22, 2022」, the Supreme Court abolished the motive theory of motive that the Supreme Court had previously maintained and proposed the “transition of a criminal law perspective” as a new criterion for deciding whether to apply Article 1(2) of the Criminal Act. However, the majority opinion of the decision judged even the matters that were not problematic in the case and offered obiter dicta, and it is necessary to review the effect of obiter dicta. In this article, it was stated that the validity of the precedent cannot be recognized for obiter dicta, which is not related to the resolution of the case, on the premise of a distinction between ratio decidendi and obiter dictum, and therefore the scope of the change of the precedent based on the decision is limited to the judgment on the change of the criminal statute itself in question in the case of the decision. In 「Supreme Court Decision 2022Do4610 Decided February 23, 2023」, the judgment of the 2020Do16420 Decision on the change of related norm was cited and presented as a basis. Therefore, the judgment on the change of the related norm shown in the 2020Do16420 Decision and the judgment on the change of the supplementary norm that can be considered as the premise can now be recognized as precedents. Nevertheless, since the 2020Do16420 Decision was made by a branch of the Supreme Court, it should be said that it does not affect the effectiveness of the previous precedents contrary to this judgement. Legal stability can be improved only when the Supreme Court clarifies what the “transition of a criminal law perspective” means, a newly proposed standard. By the way, the “transition of a criminal law perspective” eventually means the change of social ethical evaluation of an act. When the social ethical evaluation of an act changes, the norm itself presupposed by the criminal statute in question is affected. So, when a law is changed due to the change of the social ethical evaluation of an act, and the norm itself presupposed by the criminal statute in question is affected on this account, the change of the law corresponds to the change of a statute under Article 1(2) of the Criminal Act. It can be understood that the change of a statute itself is due to the change of social ethical evaluation of an act. But the change of supplementary norm or related norm can be regarded as the change of statute in Article 1(2) of the Criminal Act only if the norms themselves presupposed by the criminal statutes in question are affected by the changes, and otherwise the change of the law has no effect on the punishment assessment of the action already committed by an actor.